One item of discussion before the court was the ease with which its employees can access JPL’s environment. At the conclusion of his opening statement, Katyal said, “And the even more important point about this is the badge that the Plaintiffs are seeking access to don’t – doesn’t just give them access to JPL. It will also give them other access to all other NASA facilities. And it’s such an important credential that it would allow them to get within, for example, 6 to 10 feet of the space shuttle as it is being repaired and readied for launch. So this is a credential not just for JPL and getting onto JPL, but other places as well.”

In fact, the new credential would do no such thing. The badge now in use at JPL is already accepted for access to other NASA facilities, but only to non-sensitive areas there. Even within JPL—which is mostly an open, campus-like environment—there are a few sensitive areas where neither the existing nor the new badge allows access unless its owner is specifically authorized to be there. In addition, extensive care is taken at JPL and other NASA facilities to safeguard “flight hardware” (i.e., anything that goes into space), and the space shuttle is certainly no exception. No one without the right training and authorizations can get close to the space shuttle, no matter what kind of credential he or she carries.

On behalf of the plaintiffs, Nelson wrote letters today to Attorney General Eric Holder and NASA Administrator Charles Bolden requesting that Holder order a retraction of these remarks and issue a public correction.

In remarks prepared for delivery at the annual meeting of the Division for Planetary Sciences of the American Astronomical Society in Pasadena on Thursday Nelson said, “Katyal’s remarks reflect the Justice Department’s astounding ignorance of basic NASA rules and procedures. This ignorance has been demonstrated by the DOJ throughout the case. It is regrettable that the Supreme Court will decide an important case like this one with false information in hand.”

Other plaintiffs in the case were similarly outraged.

Larry, D’Addario, a JPL principal Engineer working on electronics for space communication, said “Perhaps Mr. Katyal’s misstatement about the space shuttle arose because he was given false information by someone. But he intentionally tried to mislead the court about the nature of the work at JPL when he described Appeals Court Judge Wardlaw as ‘underestimat[ing] how important security is there’ and when he said, ‘The information at the debate at JPL is sensitive, quite sensitive, both, you know, in terms of scientifically and with respect to our nation’s secrets.’ In reality, the vast majority of the work at JPL is in support of science that benefits all mankind. Indeed, such science can only succeed and be credible in an atmosphere of openness. The idea that it might be declared ‘sensitive’ and subject to suppression is one of our fears, and that fear is echoed in the amicus curiae briefs filed by scientific societies in support of us.”

Susan Foster, a technical writer and 40-year veteran of JPL said “Acting Solicitor General Katyal impugns NASA’s reputation by his claim that NASA’s security practices are so casual that I, a low-risk employee, can get within 6 feet of the shuttle. NASA takes its responsibilities for protecting the space shuttle very seriously and follows rigorous security practices to protect this critical national asset. Without additional authorization and an escort by a public trust employee, I would be lucky to get within 6 miles of the space shuttle, just like any other member of the public. Acting Solicitor General Katyal would be wise to discuss NASA security practices with Administrator Bolden before making such deplorable claims.”

Konstantin Penanen, a JPL research scientist, said, “NASA’s own regulations require enhanced scrutiny for those few occupying positions of public trust, where a negligent error or deliberate malice could harm a national asset such as the Space Shuttle. It is puzzling how General Katyal could be so misinformed.”

Dennis V. Byrnes, Chief Engineer for flight mechanics at JPL, said, “It is sad how throughout this case the Department of Justice has not taken the slightest effort to understand the relationship between NASA and JPL and how important the issues in this case are. The lack of understanding of the differences between civil servants and contractors is inexcusable.”

Other issues raised by the case include the threat to intellectual freedom inherent in excessive background investigations, the unfettered nature of the investigations, and the requirement to waive privacy rights as a condition of employment. The Supreme Court will make its ruling within a few months.

The plaintiffs have received broad support for their legal actions, including amicus curiae briefs filed by the American Astronomical Society, the American Civil Liberties Union, The California Employment Lawyers Association, the Drug Policy Alliance, the Electronic Privacy Information Center, the Electronic Frontier Foundation and the Union of Concerned Scientists.

Further information and all court documents are at the website hspd12jpl.org

Posted on October 7, 2010

DISCLAIMER: The opinions expressed here are those of the individual contributor(s) and do not necessarily reflect the views of the LA Progressive, its publisher, editor or any of its other contributors.

About Robert M. Nelson

Robert M. Nelson is a NASA research scientist who, after three decades, left the Jet Propulsion Laboratory after unsuccessfully challenging egregious national security regulations. He now continues his research at the Planetary Science Institute. He is also a member of the Board of Directors of the Southern California American Civil Liberties Union.

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